The residents approached the Commission for assistance a day after their eviction and contended that the eviction order was erroneously granted and that their eviction was arbitrary.  After conducting an investigation into whether the resident’s right to have access to adequate housing, including their right not to be evicted or have their homes demolished arbitrarily, the Commission was of the prima facie view that the eviction application, the eviction order and the eviction process did not comply with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE Act) and section 26 (3) of the Constitution.  Having exhausted available alternative dispute resolution remedies, the Commission instructed a firm of attorneys, Norton Rose Fulbright Attorneys, on a pro bono basis to approach the High Court for appropriate relief.

In terms of the PIE Act, the traditional council was required to follow certain prescribed procedures such as giving adequate notice of the eviction proceedings to the occupiers. It did not do so and therefore failed to follow the procedures laid down in the PIE Act. The presiding Magistrate was required to satisfy himself that the PIE Act was complied with, consider issues such as the availability of alternative accommodation and the rights and needs of women, children, elderly people and child-headed households which the Magistrate allegedly failed to do.  Acting Judge Van Niekerk bemoaned the traditional council’s non-compliance with the PIE Act and viewed the Magistrate’s granting of the eviction and demolition order as a dereliction of duty to ensure compliance with the PIE Act. The Magistrate has been found to have failed to apply an independent judicial mind to the proceedings.

The High Court reviewed and set aside the order of the Magistrates’ Court and declared the eviction and demolition of the homes unlawful. It also ordered the Amashangana Tribal Authority to construct temporary habitable dwellings equivalent to those destroyed by the demolition on a piece of land in the vicinity of the Arthurstone Farm pending the construction of permanent habitable dwellings at a site to be agreed to between the parties. The High Court authorised the Commission to monitor compliance and to approach the Court in the event of non-compliance with the court order.

The Commission is concerned about non-compliance with legislation especially those enacted to give special protection to the poor and vulnerable groups. As the Constitutional Court held in the Port Elizabeth Municipality v Various Occupiers (CCT 53/03) [2004] ZACC 7; 2005 (1) SA 217 (CC); 2004 (12) BCLR 1268 (CC) (1 October 2004) judgment, the PIE Act, amongst others, aims to overcome abuses and to ensure that evictions take place in a manner consistent with the values of the new constitutional dispensation. In the case of the residents of Arthurstone Farm the non-compliance with the PIE Act enabled abuse to prevail. Accordingly, the eviction of the residents of Arthurstone Farm was inimical to values underpinning our constitutional dispensation.

The Commission calls on the Amashangane Tribal Authority and the Bushbuckridge Local Municipality to implement the court order in detail.  The Commission will visit the Arthurstone village to meet with the affected residents before the end of June as part of the initial process to monitor compliance with the Court Order. The date of the visit will be made known once a tentative date of the visit shall have been agreed with the residents concerned.    


ENDS
Issued by the SA Human Rights Commission

For queries contact Isaac Mangena on 084 926 4269 or SAHRC Spokesperson Gail Smith on 060 988 3792